Mark Rolley v. Melissa Rolley , 13 N.E.3d 521 ( 2014 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
TERRY A. WHITE KATHARINE VANOST JONES
Olsen & White, LLP Evansville, Indiana
Evansville, Indiana
Jul 22 2014, 8:57 am
IN THE
COURT OF APPEALS OF INDIANA
MARK ROLLEY, )
)
Appellant-Petitioner, )
)
vs. ) No. 87A01-1307-DR-330
)
MELISSA ROLLEY, )
)
Appellee-Respondent. )
APPEAL FROM THE WARRICK SUPERIOR COURT
The Honorable Robert R. Aylsworth, Judge
Cause No. 87D02-1110-DR-1398
July 22, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Mark Rolley (“Father”) appeals the trial court’s grant of Melissa Rolley’s
(“Mother”) petition to modify child support.
We affirm.
ISSUE
Whether the trial court abused its discretion in granting Mother’s petition to
modify child support because the amount of Father’s child support deviated
by more than twenty percent from the Child Support Guidelines.
FACTS
Mother and Father (collectively, “the Parents”) married on August 10, 1996. They
had one child together, M.R., who was born in 1997. On September 19, 2011, when
M.R. was around fourteen years old, Father filed a petition for dissolution of his marriage
to Mother. Subsequently, on November 1, 2011, Mother and Father filed a written
settlement agreement with the trial court that included provisions regarding child custody
and support. The trial court approved the agreement on November 22, 2011.
Pursuant to the terms of the settlement agreement, the Parents shared joint legal
custody, with Mother having primary physical custody and Father having parenting time
on alternating weekends and one evening during the week. The Parents also agreed that
Father would pay $350 per week in child support; maintain medical and dental insurance
for M.R.; and pay for M.R.’s extracurricular activities, parochial school expenses through
secondary school, college tuition and expenses, and any remaining medical, dental,
hospital, or optometric expenses not covered by insurance. The Parents also
acknowledged that Father’s weekly $350 child support payment was “not based upon the
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Indiana Child Support Guidelines but [was] a sum that each believe[d was] fair and
equitable under the [] circumstances.” (App. 19).
Around ten months later, on August 17, 2012, Mother filed a motion for relief
from judgment and a petition to modify child support, arguing that since the entry of the
settlement agreement, she had learned that Father’s income was much greater than she
had previously been told. She asked the trial court to modify Father’s child support
obligations because, in light of his higher income, the $350 he was required to pay was
not reasonable. On November 16, 2012, Father responded by filing a motion to dismiss
Mother’s motion for relief from judgment, arguing that Mother’s claims were frivolous,
vexatious, and in bad faith.
Subsequently, on January 16, 2013, the trial court entered an order with findings
of fact and conclusions thereon regarding Mother’s motion for relief from judgment and
petition for modification of child support and Father’s motion to dismiss. It found that
Mother had signed past IRS statements and, accordingly, knew Father’s income. The
trial court also noted that Father had submitted evidence of an e-mail communication
between Mother and her attorney in which Mother stated that she had gone over several
financial items with Father before agreeing to the terms of the settlement agreement.
Based on these factors, the trial court granted Father’s motion to dismiss Mother’s motion
for relief from judgment.
With respect to Mother’s petition for modification of child support, the trial court
concluded that, because it was only ten months after the Parents had signed the settlement
agreement, Mother would have to prove that there were “changed circumstances so
3
substantial and continuing as to make the terms of the prior support order unreasonable”
in order for the court to grant her petition. (App. 55). However, the trial court also noted
that if Mother moved to dismiss her petition to modify support without prejudice, she
could then re-file a petition and attempt to prove under INDIANA CODE § 31-16-8-1(b)(2)
that the amount of child support differed by more than twenty percent from the amount
that would be ordered under the Child Support Guidelines.
That same day, on January 16, 2013, Mother moved to dismiss her petition
without prejudice, and the trial court granted the motion. Mother then filed another
petition to modify child support. In her petition, she argued that it had been over twelve
months since the last support order and that there was more than a twenty percent
difference between the amount of support Father was required to provide under the order
and the amount he would be required to pay under the Child Support Guidelines. She
also alleged that “this change [was] so substantial and continuing that the prior [o]rder of
the [c]ourt, as amended, is no longer reasonable under the circumstances.” (App. 58).
At the time of Mother’s petition, Father was the owner of a subchapter S
corporation, Advanced Network Computer Services. According to his tax statements, his
adjusted gross income for 2010 was $1,135,559, which amounted to $21,838 per week;
and his adjusted gross income for 2011 was $1,338,827, which amounted to $25,747 per
week. During the same time period, Mother was a student and worked part time, earning
approximately $290 per week.
On May 23, 2013, Father filed a motion to dismiss Mother’s petition to modify
child support, and on May 28, 2013, the trial court held a hearing on both Mother’s
4
petition to modify and Father’s motion to dismiss. At the time of the hearing, Father had
not yet filed his 2012 taxes. However, Father later established that his 2012 income was
$1,113,100, or $21,406 per week, and the trial court based its child support calculations
on these amounts.
On July 23, 2013, the trial court granted Mother’s petition to modify child support
and ordered Father to pay $1,419 per week. The trial court found that modification was
necessary because Father’s $350 payment requirements were “vastly” less than the
amount he owed Mother under the Child Support Guidelines. (App. 14). In addition to
modifying Father’s support requirements, the trial court also modified Mother’s support
obligations to require her to pay the first $4,807 per year of M.R.’s uninsured healthcare
expenses, as well as 1% of any expenses thereafter. Father now appeals the trial court’s
order. We will provide additional facts as necessary.
DECISION
On appeal, Father argues that the trial court erred in granting Mother’s petition for
modification of child support. Specifically, Father first argues that Mother invited the
error of receiving less child support than she would have under the Child Support
Guidelines when she knowingly agreed to the terms of her settlement agreement with
Father. In the past, this Court has held that under such circumstances, where a parent has
agreed to support terms pursuant to an agreement, that parent must later show a
substantial change in circumstances warranting a modification before the trial court may
modify the support. See Reinhart v. Reinhart, 938 N.E.2d 788 (Ind. Ct. App. 2010).
Father points to this precedent to support an argument that, since Mother invited her error
5
by entering into a settlement agreement, she was required to show that there was a
substantial change in circumstances justifying a modification. According to Father,
Mother failed to do so. Additionally, Father also argues that the trial court’s modification
was not appropriate because Mother admitted that his weekly $350 support payments
were enough to cover the cost of raising M.S. We will address each of these arguments
in turn.
First, however, we must note that when we review a modification of child support,
we will affirm the trial court’s judgment unless it is clearly erroneous. Weiss v. Frick,
693 N.E.2d 588, 590 (Ind. Ct. App. 1998), trans. denied. A judgment is clearly
erroneous only if it is clearly against the logic and effect of the facts and circumstances
before the court. Id. When a trial court has entered findings of fact and conclusions
thereon pursuant to Indiana Trial Rule 52(A), as the trial court did here, we must assess
whether the trial court’s findings are sufficient to support its conclusion. Id. We will
first determine whether the evidence supports the findings and, second, whether the
findings support the judgment. Id. In doing so, we consider only the evidence favorable
to the judgment and all reasonable inferences flowing therefrom, and we will neither
reweigh the evidence nor assess witness credibility. Id.
1. Invited Error
INDIANA CODE § 31-16-8-1 governs the modification of child support and
establishes two grounds for a modification. It provides that:
(b) . . . modification may be made only:
(1) upon a showing of changed circumstances so substantial and
continuing as to make the terms unreasonable; or
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(2) upon a showing that:
(A) a party has been ordered to pay an amount in child
support that differs by more than twenty percent (20%) from
the amount that would be ordered by applying the child
support guidelines; and
(B) the order requested to be modified or revoked was issued
at least twelve (12) months before the petition requesting
modification was filed.
As stated above, while Indiana courts have acknowledged that subsections (1) and (2) of
section 31-16-8-1 provide independent grounds for a modification, certain precedent has
created an exception for circumstances where a support order is based on an agreement
between the parties.1 See Reinhart 938 N.E.2d at 792. In such circumstances, we have
held that proving the grounds listed in subsection (2)—that a support order deviates by
more than twenty percent (20%) from the Child Support Guidelines and that more than
twelve months have passed since the order was issued—may not be sufficient. See id.Instead, a petitioner who seeks to modify a support order based on a support agreement
may also have to make a showing under subsection (1)—that there are “changed
circumstances so substantial and continuing as to make the terms unreasonable.” See id.Based on this precedent, Father claims that Mother was likewise required to show a
substantial change in circumstances and failed to do so.
In spite of the precedent that Father cites, other panels of this Court have reached
the opposite conclusion, holding that a support order based on a support agreement may
be modified based on a showing of the grounds listed in subsection (2) alone. See
Marriage of Kraft, 868 N.E.2d 1181 (Ind. Ct. App. 2007). In light of this split in
1
For purposes of clarity, we will refer to INDIANA CODE § 31-16-8-1(b)(1) as “subsection 1” and
INDIANA CODE § 31-16-8-1(b)(2) as “subsection 2.”
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authority, we will analyze the evolution of Indiana precedent in order to address Father’s
arguments. Ultimately, based on our analysis of the plain language of the child support
modification statute; our recognition that the law governing child support agreements
differs from that governing other contractual agreements; and our recognition that our
ultimate concern in the modification of child support is the child’s well-being, we
conclude that the trial court did not err in granting Mother’s petition to modify Father’s
child support obligations.
The foundational case underlying Father’s argument is Hay v. Hay, 730 N.E.2d
787 (Ind. Ct. App. 2000). In Hay, Terry Hay (“Terry”) and his wife, Dinah Hay
(“Dinah”) entered into a settlement agreement concerning child support as part of the
dissolution of their marriage. Id. at 790-91. Under the agreement, Terry was required to,
among other provisions, pay for his children’s college education expenses. Id. at 791.
However, when his daughter later expressed her intention to actually enroll in college,
Terry filed a petition to modify his child support obligations, alleging that there had been
a substantial change in circumstances because he could not have known what his
daughter’s actual school costs would be until she enrolled. Id. The trial court denied
Terry’s petition. Id.On appeal, Terry again argued that there had been a substantial change in
circumstances justifying a modification of the child support order. Id. at 793. He also
cited subsection (2) of INDIANA CODE § 31-16-8-1(b) for the first time and argued that
modification was permissible because his support deviated more than twenty percent
from the amount that would be ordered under the Child Support Guidelines and because
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it had been at least twelve months since the trial court had issued the child support order.
Id. at 794. A panel of this Court affirmed the trial court, determining that because the
parents had contemplated and agreed to college expenses in their agreement, their child’s
decision to actually enroll in college was not a change in circumstances. Id. at 793. We
also found that Terry had waived his subsection (2) argument by failing to raise it at trial.
Id. at 794.
Significantly, although we found that Terry had waived his subsection (2)
argument, we noted in dicta that reducing support on the basis of subsection (2) alone
would “vitiate[] the agreement of the parties and run[] contrary to the public policy of
encouraging parties to agree on matters of child custody and support.” Id. As a result,
we concluded—also in dicta—that “when a parent has agreed to pay support in excess of
the Guidelines and which could not be ordered by a trial court, that parent must show a
substantial change in circumstances independent of the twenty percent deviation to justify
modification.” Id. at 795.
Seven years after Hay, we decided Kraft, 868 N.E.2d at 1189, in which we
declined to adopt the dicta in Hay. In Kraft, John Kraft (“Kraft”) and Wendy Hall
(“Hall”) incorporated a settlement agreement into their decree of dissolution of marriage.
Id. at 1183. Six years later, they agreed to modify the agreement. Id. In their modified
agreement, Kraft and Hall acknowledged that their agreed upon child support was not
necessarily consistent with the Child Support Guidelines but instead represented “a
framework of competing positions.” Id.9
Subsequently, Kraft filed a petition to modify his child support obligation as a
result of a substantial decrease in his earning capacity and on the grounds listed in
INDIANA CODE § 31-16-8-1(b)(2)—that it had been more than twelve months since the
trial court’s order and that his child support obligations deviated by more than twenty
percent from the Child Support Guidelines. Id. at 1185. Hall did not dispute that Kraft
met the requirements of subsection (2) but instead argued that we should adopt Hay’s
reasoning and require Kraft to make a showing of a substantial change in circumstances
because he had agreed to a child support amount that deviated from the Guidelines. Id. at
1186.
On appeal, another panel of this Court declined to adopt Hay’s reasoning. Id. at
1187. We noted that the dicta in Hay contravened public policy because it could
discourage parents from reaching agreements regarding child support if they knew they
would have a “tougher time changing the agreement later.” Id. We also noted that
Indiana law had consistently distinguished between agreements concerning property and
maintenance and agreements concerning child support, custody, and visitation. Id.
Whereas the former have prohibitions on modification absent the consent of the parties,
our Supreme Court has held that “‘[t]he same principles and standards [regarding the
freedom to contract] cannot apply to child support.’” Id. (quoting Voigt v. Voigt, 670
N.E.2d 1271, 1278 n. 10 (Ind. 1996)). In support of that principle, we found the Supreme
Court’s opinion in Meehan v. Meehan, 425 N.E.2d 157 (Ind. 1981), superseded by statute
as stated in Reinhart, 938 N.E.2d at 793 n.2, especially persuasive. In Meehan, the
Supreme Court held that child support requirements could be modified under the then-
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applicable statute governing child support modifications, even in instances where the
original child support was established pursuant to the agreement of the parties. See id. at
160. Based on Meehan, and the additional policies and principles, the Kraft Court
disagreed with Hay and held that “we should interpret [INDIANA CODE] § 31-16-8-1 as it
is written regardless of whether the child support order has been entered pursuant to the
terms of a settlement agreement and regardless of whether the agreement to pay child
support is in excess of the guidelines.” Kraft, 868 N.E.2d at 1189.
Three years later, in Reinhart, another panel of this Court declined to follow Kraft
and instead adopted the dicta in Hay. Reinhart, 938 N.E.2d at 791. The parents in
Reinhart entered into a settlement agreement in which the father acknowledged that his
monthly payment was in excess of the amount that would be required under the Child
Support Guidelines. Id. at 790. A year later, the father filed a petition to modify his
custody obligations, arguing that a modification was warranted under INDIANA CODE §
31-16-8-1(b)(2) because it had been over twelve months, and his support deviated by
more than twenty percent from the Guidelines. Id. On appeal of the trial court’s denial
of his petition, we analyzed the father’s argument under the doctrine of invited error and
held that he could not take advantage of his own error in agreeing to a greater amount of
support and receive a later modification of that support. Id. at 791. We adopted the
language in Hay that “when a parent has agreed to pay support in excess of the guidelines
and which could not be ordered by a trial court, that parent must show a substantial
change in circumstances independent of the twenty percent deviation to justify
modification.” Id. at 792.
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As the above cases illustrate, different panels of this Court have had conflicting
interpretations of INDIANA CODE § 31-16-8-1(b)(2), and we would like to draw our
Supreme Court’s attention to this conflict for resolution. However, in light of the facts of
this case and several general principles guiding issues of child support, we conclude that
the Kraft Court’s interpretation is the most appropriate here.
First, we note that the plain language of the statute does not create a distinct
standard for modification of child support orders that are the result of child support
agreements. All of the above cases, as well as another listed below, acknowledged that
the plain language of INDIANA CODE § 31-16-8-1(b) creates two independent grounds for
modifying child support, which are separated into subsections (1) and (2). See
MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005) (“[T]he statute presents
alternative methods of seeking modification—compliance with [s]ubsection (1) or, in the
alternative, compliance with [s]ubsection (2) . . . .”); Hay, 730 N.E.2d at 794 (“While we
recognize the plain language of the statute would permit modification under the[]
circumstances” where father is paying more than twenty percent than required under the
Guidelines, “we find it difficult to believe that the legislature intended to permit a child
support agreement to be so easily circumvented . . . . ”); Kraft, 868 N.E.2d at 1189(“Under the clear language of [Indiana Code] § 31-16-8-1, Kraft was entitled to a
modification of the child support order if he demonstrated either: [the requirements of
subsection] (1) or [the requirements of subsection] (2) . . . .”) (emphasis in original);
Reinhart, 938 N.E.2d at 791 (“[INDIANA CODE] § 31-16-8-1 sets out alternative methods
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of seeking modification—compliance with [s]ubsection (1) or, in the alternative,
compliance with [s]ubsection (2).”).
While acknowledging that the plain language of INDIANA CODE § 31-16-8-1(b)
creates two independent grounds for modification, though, none of these cases have held
that the plain language of the statute creates an exception requiring a petitioner to prove
both grounds of section 31-16-8-1(b) when that petitioner has agreed to an alternate
amount of support pursuant to a settlement agreement. Such an interpretation would be
equivalent to the results of Hay dicta and the Reinhart holding. Yet Hay and Reinhart
did not base their conclusions on the plain language of the statute. Nor can we find any
exception justifying such a conclusion in the statute’s plain language. The “or”
separating subsections (1) and (2) clearly indicates that the two subsections establish
separate grounds for modification, and there is not any internal or subsequent language
limiting the independence of those subsections.
Both this Court and our Supreme Court have emphasized the importance of
adhering to the plain language of the support modification statute. See Kraft, 868 N.E.2d
at 1188-89. In Kraft, this Court noted that in Meehan the Supreme Court stated that this
adherence is “imperative.” Id. at 1188 (quoting Meehan, 425 N.E.2d at 160).
Subsequently, the Reinhart Court stated that one of its reasons2 for declining to follow
2
Another reason the Reinhart Court cited was that the Supreme Court stated in dicta in MacLafferty that
the result in cases involving the modification of child support obligations “‘might well be affected by
prior agreements of the parties.’” Reinhart, 938 N.E.2d at n. 2 (quoting MacLafferty, 829 N.E.2d at n. 5).
However, as this dicta was in a footnote in MacLafferty, it is clear that the MacLafferty Court was merely
acknowledging the existence of the Hay decision rather than expressly approving its language. See
MacLafferty, 829 N.E.2d at n.5. Instead, the MacLafferty court specifically states that the statute presents
“alternative methods of seeking modification. . . .” See id. at 490.
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Kraft was that Kraft was based on Meehan, which was in turn based on an out of date
version of the support modification statute.3 See Reinhart, 938 N.E.2d at n. 2. However,
the Reinhart Court’s dismissal of Kraft overlooks the Kraft Court’s reason for relying on
Meehan. The Kraft Court cited Meehan for the proposition that we must adhere to the
plain language of the child support modification statute. See Kraft, 868 N.E.2d at 1189(“Following the Supreme Court’s directives in Meehan, we conclude that we should
interpret [INDIANA CODE] § 31-16-8-1 as it is written regardless of whether the child
support order has been entered pursuant to the terms of a settlement agreement and
regardless of whether the agreement to pay child support is in excess of the guidelines.”).
That principle is still relevant here. Moreover, even though Meehan concerned a
different version of the modification statute, the plain language of the current statute, as
discussed above, leads to the same conclusion as the Meehan Court that the modification
standard does not distinguish between support orders based on the origin of their terms.
See Meehan, 425 N.E.2d at 160.
In addition to our analysis of the plain language of the statute, we decline to adopt
the Reinhart Court’s reasoning because the circumstances before us are factually
distinguishable. Both Hay and Reinhart concerned parents who had agreed to a higher
amount of support than they would pay under the Child Support Guidelines.
Consequently, based on the doctrine of invited error, this Court concluded that they could
3
The version of the support modification statute at issue in Meehan provided that “[p]rovisions of an
order with respect to child support may be modified or revoked. Such modification shall be made only
upon a showing of changed circumstances so substantial and continuing as to make the terms
unreasonable.” See Meehan, 425 N.E.2d at 160 (quoting I.C. § 31-1-11.5-17(a) (Burns 1980 Repl.)). In
other words, this version of the statute did not provide the current statute’s second ground for support
modification that is listed in subsection (2).
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not benefit from their respective errors and receive later reductions in their support
obligations. Here, however, Mother agreed to a lower amount of support than Father
would have had to pay under the Child Support Guidelines.
It is a well-established rule of child support that “‘the right to support lies
exclusively with the child[] and that a parent holds the child support payments in trust for
the child’s benefit.’” Roop v. Buchanan, 999 N.E.2d 457, 460 (Ind. Ct. App. 2013)
(quoting Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind. Ct. App. 1997), trans. denied). The
custodial parent acts as a trustee of the payments and is to use them for the benefit of the
child. Id. Because child support payments are for the benefit of children, a parent may
not “bargain them away,” even at the other parent’s urging. Schwartz v. Heeter, 994
N.E.2d 1102, 1107 (Ind. 2013).
In Schwartz, a father tried to argue, after a revision in the Child Support
Guidelines, that the trial court should base his support obligations on the previous version
of the Guidelines that had formed the basis of his settlement agreement with the mother.
Schwartz, 994 N.E.2d at 1107. The father contended that if he had known the Guidelines
could change, he would have offered the Mother less support in their settlement
negotiations. Id. The Supreme Court did not find this argument persuasive because it
was not Mother’s right to “bargain . . . away” the support. See id.
Likewise, here, Mother’s alleged “invited error” did not harm herself—it harmed
M.R., who subsequently did not receive the support that she should have received from
Father. As a result, it would be inappropriate for us to require Mother to meet a higher
standard of proving that circumstances have substantially changed since the trial court’s
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original order before granting her petition to modify support. While the doctrine of
invited error may be justifiable in instances when a parent has agreed to pay more than
what that parent must pay, it surely should not be justifiable in instances such as the
current case where a parent has agreed to pay less than required. Such a conclusion
would be against public policy and against our well-established principle that child
support payments are for the benefit of children, not their parents. See Johnson v.
Johnson, 999 N.E.2d 56, 60 (Ind. 2013) (recognizing that our Indiana Code requires “trial
courts to consider, among other things, ‘the standard of living the child would have
enjoyed had the marriage not dissolved or had the separation not been ordered’ in
fashioning (or modifying) a child support order.”). Accordingly, we conclude that the
trial court did not err in granting Mother’s petition to modify child support since Mother
met the requirements of subsection (2) that more than a year had passed since the
issuance of the support order and that the order deviated from the Child Support
Guidelines by more than twenty percent.
2. Calculation of Support
Next, Father argues that, assuming Mother’s petition was procedurally valid, the
trial court erred in calculating his support. He notes that a trial court may, in its
discretion, deviate from the presumptive amount specified in the Child Support
Guidelines if the application of the Guidelines would result in an unjust award. Here, he
claims that an amount greater than the $350 per week he currently pays would be unjust.
In support of this claim, Father points to Mother’s admission that raising M.R. only cost
her $247 per week. He also notes that:
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In developing these guidelines, a great deal of reliance was placed on the
research of Thomas J. Espenshade, generally considered the most
authoritative study of household expenditures. Espenshade’s parental
expenditures on children based upon expenditure categories are divided
essentially into ten categories: food at home (13.9%), food away from
home (4.9%), shelter (12%), fuel and utilities (3.9%), household goods
(10.2%), clothing (7.1%), transportation (26.5%), healthcare (5.5%),
recreation (10.1%), and miscellaneous (5.9%).
(Father’s Br. 20) (internal citations omitted). Because Mother does not have a mortgage
payment for her home, and Father is responsible for M.R.’s healthcare and other
miscellaneous expenses, Father claims that the trial court should deduct the above
corresponding percentages of payments from his modified support requirement.
In 1989, our Supreme Court adopted the Child Support Guidelines to “‘facilitate
adequate support awards for children, to make awards more equitable by ensuring
consistent treatment of persons in similar circumstances, and to improve the efficiency of
the process of determining support.’” Eppler v. Eppler, 837 N.E.2d 167, 174 (Ind. Ct.
App. 2005) (quoting Garrod v. Garrod, 655 N.E.2d 336, 338 (Ind. 1995)). Our Supreme
Court has advised that achieving those ends does not require treating the Guidelines as
“immutable, black letter law.” Garrod, 655 N.E.2d at 338. There are situations that “call
for flexibility[,] and courts should avoid the pitfall of blind adherence to the [Guidelines’]
computation for support without giving careful consideration to the variables that require
changing the result in order to do justice” in such circumstances. Id. Deviation is proper
if strict application of the Guidelines would be “unreasonable, unjust, or inappropriate.”
Id.
17
The Guidelines set forth an income shares model that apportions the cost of
children between the parents according to their means and based on the premise that
children should receive the same portion of parental income after a dissolution that they
would have received if the family had remained intact. Glover v. Torrence, 723 N.E.2d
924,936 (Ind. Ct. App. 2000). A trial court’s calculation of a child support obligation
under the Child Support Guidelines is presumptively valid. Id. Reversal is merited only
where the determination is clearly against the logic and effect of the facts and
circumstances. Id. We will not reweigh the evidence or judge the credibility of
witnesses, and we will consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Id.First, we reject Father’s argument that he should not have to pay more than $350
per week because Mother admitted that she currently supports M.R. on less. As we stated
above, the standard is not whether a parent can support a child on a certain amount of
support. Instead, the trial court apportions support between the parents on the premise
that a child should receive the same portion of parental income after dissolution that they
would have received if the family had remained intact. See id. Mother testified that even
though she is able to provide for M.R.’s basic needs on less than $350 per week, M.R.’s
standard of living has changed substantially on this amount of support. M.R. rarely gets
to eat at the restaurants where she used to eat, shop at the stores where she used to shop,
or go on vacations like the ones she used to go on before the dissolution. Although these
items are not necessary for M.R.’s basic survival, she is no longer living as she would if
the family had remained intact.
18
Turning to Father’s argument that the trial court should have reduced his support
requirement because Mother does not have to pay a mortgage on her house and because
he pays for M.R.’s health insurance, we note that that the trial court did subtract $13.64
per week to credit Father for his payment of M.R.’s health insurance. In addition, the
trial court’s modified support order required Mother to pay the first $4,807 per year of
M.R.’s uninsured healthcare expenses. In light of those factors, we will not address that
argument. We will, however, address Father’s argument concerning Mother’s mortgage.
The commentary to the Child Support Guidelines provides that:
Likewise, imputed income may be substituted for, or added to, other
income in arriving at weekly gross income and includes such items as free
housing, a company car that may be used for personal travel and
reimbursed meals or other items received by the obligor that reduce his or
her living expenses.
Child Supp. G. 3(A), cmt. 2. The decision regarding whether or not to impute income to
a parent is a matter for the trial court’s discretion. Miller v. Sugden, 849 N.E.2d 758, 763
(Ind. Ct. App. 2006), trans. denied. However, the commentary to the Guidelines
provides additional guidance, stating that:
Whether or not income should be imputed to a parent whose living
expenses have been substantially reduced due to financial resources other
than the parent’s own earning capabilities is also a fact-sensitive situation
requiring careful consideration of the evidence in each case. It may be
inappropriate to include as gross income occasional gifts received.
However, regular and continuing payments made by a family member,
subsequent spouse, roommate, or live-in friend that reduce the parent’s
costs for rent, utilities, or groceries, may be the basis for imputing income.
Child Supp. G. 3(A), cmt. 2(D).
19
Based on this standard, we cannot agree with Father that the trial court abused its
discretion because it did not impute to Mother income for her lack of a mortgage
payment. In spite of the fact that Mother does not have to pay a mortgage, Father has not
shown that Mother’s living expenses are “free.” She must presumably still pay the other
usual expenses of being a homeowner, including utilities, property taxes, and
maintenance, and Father has not provided any evidence to the contrary.
In Thomas v. Orlando, 834 N.E.2d 1055, 1060 (Ind. Ct. App. 2005), we held that a
mother’s rent-free living situation did not free up money to support her child because she
was a “young, full-time student, trying to raise a baby, who had no income on which to
draw to pay for living expenses.” We contrasted this circumstance with the Supreme
Court’s decision in Glass v. Oeder, 716 N.E.2d 413 (Ind. 1999), where the Supreme
Court found that a father’s rent-free living arrangement was imputed income because he
also owned a corporation and received $40,000 per year as income. Id. We found that
because the mother’s rent-free arrangement was not “an extra, padded amount that added
to her already-present ability to support herself and her child[,]” the trial court did not
abuse its discretion in determining that her living situation was not additional imputed
income. Id. at 1061. Instead, the trial court properly looked to the totality of the
circumstances. Id. In contrast, the father in Glass was able to support himself and his
child without the imputed income. See id.
Although Mother here does have weekly income, she is also a full-time student
and receives an income of only $290 per week. Her lack of a mortgage is not an “extra,
padded amount that adds to her already present ability to support herself and her child.”
20
See id. at 1061. Also, Father has an income of $25,747 per week. In light of this
discrepancy and the fact that, regardless of Mother’s lack of mortgage, her living
expenses are not “free,” we conclude that the trial court did not abuse its discretion by
deciding not to consider Mother’s mortgage-free house imputed income. The trial court’s
award was not unjust.
Because we are not persuaded by Father’s arguments and because the trial court
followed the Child Support Guidelines in calculating Father’s modified amount of child
support, we conclude that the trial court did not abuse its discretion in its support
calculation.
Affirmed.
MATHIAS, J., and BRADFORD, J., concur.
21